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United States v. Hofstetter

United States District Court, E.D. Tennessee, Knoxville

October 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SYLVIA HOFSTETTER, COURTNEY NEWMAN, CYNTHIA CLEMONS, and HOLLI WOMACK, Defendants.

          MEMORANDUM AND ORDER

          Debra C. Poplin United States Magistrate Judge

         This case is before the undersigned on Defendant Courtney Neman's Motion in Limine to Compel the Government to Produce Original Patient Files at Trial [Doc. 475]. See 28 U.S.C. § 636(b). Defendant Newman argues [Doc. 475] that the original paper files seized from the Tennessee pain management clinics at issue in this case are critical to her defense, are the best evidence of the patient files, and contain information not available in the black and white electronic copies that the Government provided in discovery. The Government responds [Doc. 569] that production of hundreds of paper files is neither necessary, nor feasible.

         The parties appeared for a hearing on this motion on September 10, 2019. At that time, counsel for Defendant Newman argued that the electronic black and white copies of the files are not duplicates, because they do not depict the different colors of ink used by the staff and providers, the organization of the files, and the tabs on some of the files. The Government objected to transporting the more than 6, 000 patient files to and from the FBI evidence vault for each day of trial. At a pretrial conference that same afternoon, United States District Judge Thomas A. Varlan encouraged the parties to enter into a stipulation, so that the Government could store the physical patient files at the courthouse, which would facilitate their use in evidence at trial.

         Although Codefendants Hofstetter, Clemons, and Womack have not expressly joined in Defendant Newman's motion, [1] they along with Defendant Newman and the Government have stipulated to the chain of custody and the authenticity of the seized original patient files. Thus, the Court will consider this motion as to all four Defendants proceeding to trial. On October 2, the Government filed a supplemental brief [Doc. 649');">649');">649');">649], asking the Court to rule that the electronic copies are proper duplicates under Federal Rule of Evidence 1003 and to exercise its discretion over the presentation of the evidence at trial to require the parties to use primarily digital versions of the patient files on the Court's JERS program.

         For the reasons discussed below, the Court finds as follows: (1) the electronic copies of the paper patient files are duplicates under Rule 1003 and (2) the Defendants may use some original (i.e., paper) patient files, under the procedure set out below.

         I. BACKGROUND

         The Court takes the following background regarding the patient files from the Government's supplemental brief [Doc. 649');">649');">649');">649, p.2]:

On March 10, 2015, the FBI executed several search warrants and seized hundreds of boxes of records, including patient files, from clinics owned and operated by the defendants. The FBI logged all of the files into evidence. In order to provide easy access to these files for both the United States and the defendants, the FBI subsequently transported those files to the FBI Document Conversion Laboratory located in West Virginia. The files were scanned by FBI personnel and labeled according to “1B” numbers. The patient files were labeled by “1B” number and name of the patient. FBI personnel scanned each page of each document or patient file, but did not scan small “sticky tabs” or the interior manila folder partitions.

         The Court also observes that the FBI scanned the patient files in black and white, but the paper files contain writing in black, blue, and red ink, which the Defendants contend corresponds to the individual who wrote in the file.

         On August 29, 2019, the undersigned ordered [Doc. 567] the parties to designate which patient files they would use in their cases-in-chief at trial. The Court ordered the Government to designate patient files by September 13, 2019, and the Defendants to designate, either individually or jointly, patient files by September 20, 2019. Only the Government and Defendant Newman designated files by these deadlines. The Court extended [Doc. 629] the designation deadline for the remaining Defendants to October 11, 2019, when it continued the trial to October 21, 2019. According to the Government's supplemental brief [Doc. 649');">649');">649');">649, p.3], it designated 237 patient files that it may offer in its case-in-chief. Defendant Newman designated 88 specific files and listed seven other categories of files [Doc. 649');">649');">649');">649, p.3]. According to the Government, Defendant Newman's categories of files “amount to well over 3, 000 of the 6, 000-plus patient files seized in this case” and will require the Government to transport all of the boxes containing patient files from the FBI evidence vault [Doc. 649');">649');">649');">649, p.4].

         II. USE OF ELECTRONIC PATIENT FILES

         Federal Rule of Evidence 1002 provides that “[a]n original writing, recording of photograph is required in order to prove its contents unless these rules or a federal statute provide otherwise.” Rule 1003 states that a “duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.” Fed.R.Evid. 1003. As stated above, the parties have stipulated to the authenticity of the original paper files. The Defendants argue that use of the black and white electronic copies of the patient files, rather than the original paper files, is unfair, because the electronic copies do not show that the clinic staff, the midlevel providers, and the supervising physician wrote in the files in different colors of ink. The Defendants also argue that the electronic files do not show the organization of the file and, in particular, the thickness of the file, which reveals that the clinic patients received care at the clinic over a long time. Finally, the Defendants argue that many of the paper files contain tabs flagging certain pages, which tabs are not reproduced in the electronic copies. The Defendants argue that because the original paper files convey more information than the black and white electronic copies, the electronic copies are not fairly considered duplicates under Rule 1003. They ask the Court to require the Government to produce the original paper files for use at trial.

         The Government argues [Docs. 569 & 649');">649');">649');">649] that the electronic copies are duplicates under Rule 1003. It contends that the electronic copies are authentic and that it is not unfair to admit the electronic copies, rather than the original paper files. In this regard, it maintains that the Defendants may cross-examine witnesses about the organization of the files and the importance of the features, such as tabs and ink color, in the original files.

         In the instant case, the Court finds there does not appear to be any serious dispute over the authenticity of the electronic files. Instead, the issue turns upon whether it is unfair to admit an electronic copy that does not show the color of ink or tabs on the original. The Court finds that admission of a scanned copy that does not reveal the color of ink used on the original paper is not unfair under Rule 1003, if the defendant is able to question the ...


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